Opinion
November 19, 1993
Appeal from the Supreme Court, Niagara County, Rath, Jr., J.
Present — Callahan, J.P., Pine, Lawton, Doerr and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied respondents' motion for summary judgment dismissing the petitions in these proceedings brought pursuant to RPTL article 7 to review the assessments on the subject property for tax years 1989-1990, 1990-1991, and 1991-1992. Respondents failed to demonstrate their initial entitlement to judgment in their favor as a matter of law. Respondents, in support of their motion for summary judgment, proffered evidence that petitioner, in certain mortgage applications and in schedules annexed to a bankruptcy petition, estimated the fair market value of the subject property at an amount that exceeded respondents' tax assessments. While that evidence may be admissible as some proof of the fair market value of the subject property, it manifestly does not constitute "`persuasive evidence as to the market value of property for tax assessment purposes'" (Matter of River House Co. v Assessor of City of Binghamton, 56 A.D.2d 980; see, Farash v Smith, 59 N.Y.2d 952, 955; Matter of Elmhurst Towers v Tax Commn., 34 A.D.2d 570; Matter of Niagara Mohawk Power Corp. v Board of Assessors, 18 A.D.2d 237). Therefore, because respondents failed to meet their initial burden on their motion for summary judgment, the burden never shifted to petitioner to come forward with evidentiary proof that would be sufficient to defeat the motion.
Contrary to respondents' contention, the existence of the presumption that tax assessments are valid (see, Farash v Smith, supra, at 955; Matter of Welch Foods v Town of Portland, 187 A.D.2d 948), without more, is insufficient to entitle respondents to summary judgment. "Such a presumption is not evidence but serves in place of evidence until the opposing party comes forward with his proof, whereat it disappears. It has no weight as evidence and is never to be considered in weighing evidence. In other words, it merely obviates any necessity, on the part of the assessors, of going forward with proof of the correctness of their valuation. So understood, `the presumption of correctness' is merely another way of saying that the burden of proof in a proceeding to review an assessment is on the relator-taxpayer. On him that burden has always rested" (People ex rel. Wallington Apts. v Miller, 288 N.Y. 31, 33, rearg denied 288 N.Y. 672; see also, Mobil Oil Corp. v Tax Commn., 60 A.D.2d 910, 911; Matter of Property Portfolio 182 Corp. v Tax Commn., 58 A.D.2d 650).
Lastly, respondents' failure to demonstrate their initial entitlement to judgment in their favor as a matter of law requires denial of their summary judgment motion regardless of the sufficiency of the opposing papers of petitioner (see, Ayotte v Gervasio, 81 N.Y.2d 1062; Jordan v Musinger, 197 A.D.2d 889).